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2013 DIGILAW 28 (CAL)

Shibani Ghosh v. State Bank of India

2013-01-18

SAMBUDDHA CHAKRABARTI

body2013
JUDGMENT Sambuddha Chakrabarti, J. By this writ petition the petitioners, inter alia, pray for a writ in the nature of Mandamus commanding the respondents to issue appointment letter to the petitioner no. 2 and a writ in the nature of Prohibition prohibiting the respondents from issuing any letter of appointment to any person under the died-in-harness category till an appointment to the petitioner no. 2 or till the disposal of the present writ petition. 2. The petitioner no. 1 is the mother of petitioner no. 2. The husband of the petitioner no. 1 and the father of the petitioner no. 2 died-in-harness on March 22, 2004 while working as a security guard in the State Bank of India. After the death of the said employee the family of the petitioners faced financial problems and in June, 2004 the petitioners approached the authorities for employment of the petitioner no. 2 on compassionate ground. The petitioners approached the respondents many times thereafter; but the authorities did not favour them with appointment. Ultimately the petitioners sent a notice demanding justice in July, 2011 through their learned Advocate. The petitioners received a reply that with effect from August 4, 2005 the bank authorities have decided to pay an ex gratia lump sum amount for payment in lieu of payment on compassionate ground. The petitioners were requested to submit an application for payment of ex-gratia amount. 3. On October 24, 2011 the petitioner no. 2 again wrote a letter to the respondents authorities requesting them to grant employment as the claim of the petitioner no. 2 arose in June, 2004 when his father had died-in-harness. According to the petitioners the petitioner no. 2 is legally entitled to get compassionate appoint under the old scheme and not bound by the new scheme of ex-gratia lump sum payment. 4. On January 9, 2012 an Advocate’s letter was sent to the respondents requesting them to grant compassionate appointment and other consequential benefits. According to the petitioners they filed an application in time and if it had been processed properly the petitioner no. 2 would by now have been in service. The respondents had harassed the petitioners and have now taken a plea that they have withdrawn the scheme of compassionate appointment from June, 2005. The changed scheme can only have prospective effect and cannot be retrospectively applied. 2 would by now have been in service. The respondents had harassed the petitioners and have now taken a plea that they have withdrawn the scheme of compassionate appointment from June, 2005. The changed scheme can only have prospective effect and cannot be retrospectively applied. The petitioners’ grievance is that the respondents were trying to dislodge the petitioner no. 2 on a prospective circular which does not apply to the case of the petitioner. 5. The respondents bank authorities have contested the application by filing an affidavit-in-opposition. It has been contended that the writ petition is not maintainable as the petitioners had filed their application about seven years after the death of their predecessor-in-interest. It has been further contended by the respondents that the scheme of appointment of the dependants of the deceased employees was adopted by the concerned bank but it was never a term or a condition of service. Since the said scheme had thrown up some unanticipated problems for the bank as well as the dependant employees the executive committee of the central board of the bank adopted and approved the scheme on August 4, 2005 for payment of ex-gratia lump sum amount instead of providing any compassionate appointment substituting the previous scheme of compassionate appointment and it was specifically mentioned that no request for compassionate appointment should be entertained by the bank. It further stipulated that all applications pending under the compassionate scheme on October 4, 2005 would be dealt with in accordance with the new scheme. 6. The affidavit denies the assertions made by the petitioners and states that the bank had by its letter dated October 7, 2011 stated that appointment on compassionate ground had been abolished and the petitioners were specifically asked to submit an application for ex-gratia payment. The petitioners without submitting any such application, however, continued to insist on compassionate appointment which had already been abolished. 7. The further case of the respondents was that under the earlier scheme only immediate penury of the family of the deceased employee was a matter of consideration. As such even under the earlier scheme there was no question of allowing the petitioners’ claim for compassionate appointment about seven years after the death of an employee. Thus, the writ petition suffers from the vice of delay as well. 8. As such even under the earlier scheme there was no question of allowing the petitioners’ claim for compassionate appointment about seven years after the death of an employee. Thus, the writ petition suffers from the vice of delay as well. 8. The respondents have taken a very serious stand to the effect that under the new scheme for payment for ex-gratia lump sum amount the petitioner no. 2 could have been considered provided she had applied for such payment under the new scheme. She had no application pending for compassionate appointment on the date the new scheme came into being and the petitioner even though advised did not deliberately applied for the payment of lump sum amount. 9. The respondents had prayed for a dismissal of the writ petition. 10. The petitioners have not filed any affidavit-in-reply. 11. The respondents have specifically asserted that on the day the new scheme came into being the petitioner no. 2 had no application for compassionate appointment pending with the bank authorities. The petitioners have annexed a copy of an application dated June 22, 2004 for employment on compassionate ground but it is not clear how the said letter was served upon the addressee for it bears no mark of acknowledgement. The next letter written on behalf of the petitioners was an Advocate’s notice dated July 20, 2011. When the bank authority by their letter dated August 29, 2011 requested the petitioner no. 2 to inform them whether any prescribed application for compassionate appointment was submitted and, if so, to provide them with a copy thereof, the petitioner did not provide any such. Again on October 7, 2011 when the petitioner no. 2 was requested to submit the necessary application for payment of ex-gratia lump sum amount the petitioner did not file any such application for the same. Instead the petitioner no. insisted on compassionate appointment on the ground that the scheme had been introduced after the death of her father and it cannot be retrospectively applied to his case. 12. According to the respondents compassionate appointment which is neither a right nor a condition of service is traceable to the scheme and since the scheme has been abolished it is not possible for the bank to offer any appointment on compassionate ground after 2005. To the assertion of the petitioner that the present scheme cannot be applied retrospectively Mr. 12. According to the respondents compassionate appointment which is neither a right nor a condition of service is traceable to the scheme and since the scheme has been abolished it is not possible for the bank to offer any appointment on compassionate ground after 2005. To the assertion of the petitioner that the present scheme cannot be applied retrospectively Mr. Sinha, the learned Advocate for the bank authorities had relied on the case of State Bank of India and another Vs. Rajkumar, reported in 2010(2) LLJ 669 (SC). The facts of that case are relevant for our present purpose and are more or less similar to the present one. There also the father of the respondent Rajkumar was an employee of the said bank and he died in October, 2004. Application for compassionate appointment was made prior to the introduction of the new scheme. Then the new scheme came and the old scheme for compassionate appointment was abolished. Clause XIV of the new Scheme clearly provided that applications pending under the old compassionate appointment scheme would be dealt with in accordance with the new scheme for payment of ex-gratia lump sum amount. In the case before the Supreme Court also the bank advised the respondents to make an application under the new scheme. The respondent in the said appeal filed a writ petition. A learned single Judge directed the bank authorities to reconsider the case of the respondents on compassionate grounds holding that the old scheme applied to that case and the new scheme was only prospective in operation. A division bench in appeal affirmed the order of the learned single Judge. In further appeal by special leave by the bank authorities the Supreme Court had clearly laid down that if a scheme provides for automatic appointment to a specified family member on the death of any employee it can be said that the scheme creates a right in favour of the family members for appointment on the date of the death of the employee. In such an event the scheme in force on the date will apply. In such an event the scheme in force on the date will apply. On the other hand, if a scheme provides that on the death of an employee if a dependant family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfill any eligibility criteria, then the scheme creates a right in favour of the applicant on making the application. When the application for compassionate appointment was pending the old scheme itself was abolished and the new scheme specifically provided that all pending applications would be considered under the new scheme and the Supreme Court held that the new scheme alone would apply even in respect of pending applications. 13. This judgement squarely applies to the facts of the present case. Here the respondents asserted that there is no application pending on the date the new scheme was introduced and the petitioner no. 2 did not file any application for payment of ex-gratia. Even if any such application was pending on the basis of the ratio of the case discussed above the petitioners are not entitled to the compassionate appointment. 14. In such view of the matter the writ petition has no merit and is dismissed. The petitioners, however, are entitled to apply for ex-gratia lump sum payment in accordance with the new scheme and if such application is made the respondent shall consider the same in accordance with law and the terms of the scheme. Urgent photo-stat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.